Dedndreaj v ABC Carpet & Home

Dedndreaj v ABC Carpet & Home 2012 NY Slip Op 01774 Decided on March 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 13, 2012
Tom, J.P., Saxe, Acosta, DeGrasse, Román, JJ.
7075 310410/08

[*1]Agim Dedndreaj, Plaintiff-Appellant,

v

ABC Carpet & Home, et al., Defendants-Respondents.




Block O'Toole & Murphy, LLP, New York (David L. Scher of
counsel), for appellant.
Burke, Gordon & Conway, White Plains (Michael G. Conway
of counsel), for ABC Carpet & Home, respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Howard R.
Cohen of counsel), for Deegan Overhead Doors Company Inc.,
respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered April 7, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established his prima facie entitlement to summary judgment by showing that defendants' failure to provide an adequate safety device proximately caused a pipe that was in the process of being hoisted to fall and strike him (see Arnaud v 140 Edgecomb LLC, 83 AD3d 507 [2011]).

In opposition, defendants failed to raise a triable issue of fact. Even assuming that plaintiff disregarded warnings by walking through the passageway and under the pipe, such conduct was not the sole proximate cause of the injury (see Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). Nor may defendants rely upon the "recalcitrant worker" defense given [*2]that plaintiff was following his superior through the passageway, which was the only means of exiting the room (see Ramirez v Shoats, 78 AD3d 515, 517 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 13, 2012

CLERK